It has been a long time since I have had reason to strongly disagree with the insights offered by Karen Rubin and company over at their excellent blog – The Law for Lawyers Today – but here we are again.
Karen has written a thought-provoking piece about a criminal defense lawyer with a parody Twitter account and his role in the insanity that is the delusional Pizzagate conspiracy theory that led to a man going into a pizza parlor and firing shots. She shakes out of a belief that the lawyer in question ought to be pursued for violation of the ethics rules in Florida — specifically that state’s version of RPC 8.4(c). I think interpreting that rule to apply to circumstances where a lawyer is engaged in parody and satire is dangerous and unwise.
Admittedly, such an interpretation is not as dangerous and unwise as riling up stupid people to do stupid violent things in aid of trying to investigate a stupid conspiracy theory which is what the Florida lawyer may have been a part of, but still dangerous and unwise.
I manage to talk a good bit about RPC 8.4(c) when I speak at seminars, and, in fact, I brought it up again this year during my tour of the state for the 2016 Ethics Roadshow. The rule, as written, fascinates me because all reasonable lawyers have to agree it doesn’t mean 100% of what it says. It reads: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Now Karen is absolutely correct that the rule applies to lawyers even when they are not being lawyers, but it also can’t literally mean what it says. Otherwise, as I always have fun pointing out to large-ish crowds, it would mean that lawyers could essentially never play poker (even when doing so is legal and not illegal gambling) because we would not be allowed to bluff. Deceit. Also, and particularly salient for the time of year, it would mean that those of us who are parents would have to tell the truth to our children about Jolly Old St. Nick the first time we are asked/confronted because to do otherwise would be engaging in conduct involving dishonesty.
We all know that the rule could never be enforced in such a manner and that no one would ever try to discipline a lawyer for such conduct. Thus, the rule can’t be read 100% literally. Figuring out exactly where the line is between untenable applications of its prohibition and reasonable applications is the hard part though.
A good example of conduct it definitely was intended to address was a relatively recent situation where a law school dean got suspended for his role in fudging the law school’s statistics. You can go back and read about that here.
Taking the position that it can be applied to a lawyer’s parody account on Twitter to me is on the wrong side of the line, and so I beg to differ with Karen on this one.
(P.S. If you are really looking for someone who truly deserves scorn for his role in pushing the ridiculously stupid conspiracy theory on the ridiculously gullible people who bought into it (and perhaps still do), this guy deserves heaps of scorn even though he’s not a lawyer.)